Sticky Rice

THE DISTRICT OF COLUMBIA
ALCOHOLIC BEVERAGE CONTROL BOARD

Holder of a Retaileťs Class CR Li cense

at premises

1224 H Street, N.E.

Washington, D.C. 20002

Bee Hive, LLC
t/a Sticky Rice

In the Matter of:

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BEFORE:

Ruthanne Miller, Chairperson
Nick Alberti, Member
Donald Brooks, Member
Herman Jones, Member
Mike Silverstein, Member

ALSO PRESENT: Bee Hive, LLC, t/a Sticky Rice, Respondent

Michael Fonseca, of the firm Mallios and 0'Brien, on behalf of the
Respondent

Chrissy Gephardt, Assistant Attorney General,
on behalf of the District of Columbia

Martha Jenkins, General Counsel

Alcoholic Beverage Regulation Administration

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

This case is about a licensee that turned a routine compliance check that would have
found no violations of the law into a serious violation of the Districťs alcoholic beverage control
laws. On January 1, 2013, without justification or cause, Justin Martin, the owner of Bee Hive,
LLC, t/a Sticky Rice, (Respondent), had two Alcoholic Beverage Regulation Administration

INTRODUCTION

(ABRA) investigators ejected from his establishment by the establishmenťs security during a
lawful investigation. For this reason, the Alcoholic Beverage Control Board (Board) fínds that
the Respondent violated District of Columbia (D.C.) Official Code § 25-823(5) by interfering
with an investigation conducted by the ABRA. The Respondent shall pay a $4,000 fine and have
its license suspended for twenty-five days. The Respondent shall serve fifteen suspension days,
and shall receive ten stayed suspension days, which shall go into effect if we find that the
Respondent has committed any additional violations within one year from the date of this Order.
The suspension shall run from November 13, 2013, to November 27, 2013.

Procedural Background

This case arises from the Notice of Status Hearing and Show Cause Hearing (Notice),
which the Board executed on May 3, 2013. ABRA Show Cause File No., 13-CMP-00012, Notice
of Status Hearing and Show Cause Hearing, 4 (May 3, 2013). The ABRA served the Notice on
the Respondent, located at premises 1224 H Street, N.E., Washington, D.C, on May 7, 2013.
ABRA Show Cause File No., 13-CMP-00012, Service Forrn. The Notice charges the Respondent
with a single violation, which if proven true, would justify the imposition of a fine, suspension,
or revocation of the Respondenťs ABC-license.

Specifically, the Notice, charges the Respondent with the followíng violation:

Charge I: [On January 1, 2013,] [y]ou failed or refused to allow an ABRA

investigator ... to enter or inspect without delay the licensed premises or
otherwise interfered with an investigation, in violation of D.C. Official
Code § 25-823(5) ....

Notice of Status Hearing and Show Cause Hearing, 2.

Both the Government and Respondent appeared at the Show Cause Status Hearings for
this matter on June 12, 2013. The parties proceeded to a Show Cause Hearing where they argued
their respective cases on July 24, 2013.

FINDINGS OF FACT

The Board having considered the evidence contained in the record, the testimony of
witnesses, and the documents comprising the Boarďs official file, makes the following findings:

1. The Respondent holds a Retaileťs Class CR License, ABRA License Number 72783.
See ABRA Licensing File No. 12783. The establishmenťs premises are located at 1224 H Street,
N.E., Washington, D.C. l±

2. ABRA Investigator Earl Jones and ABRA Investigator Kofi Apraku entered the
Respondenťs establishment on January 1, 2013, at 2: 15 a.m. in the morning. Transcript (7>.),
Jul. 24, 2013 at 9, 72. Both investigators were monitoring establishments in the H Street, N.E.,
area as part of a New Yeaťs Eve initiative conducted by the ABRA. Id. at 9-10, 72, The

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investigators entered the Respondenťs establishment for the purpose of engaging in a routine
compliance check. Id, at 10.

3. Upon entering the establishment, the investigators identified themselves to a female
employee by presenting their credentials, a photo and a badge, and requested to speak to a
licensed manager. Id, at 1 1, 24, 73. The establishmenťs owner, Jason Martin, then approached
the investigators near the establishmenťs first floor bar. Id, at 2, 1 1 , 73. The bar area was dimly
lit, but had enough light to observe the investigatoťs identification documents. Id. at 15.

4. Investigator Jones informed Mr. Martin that the investigators had entered his
establishment in order to check the establishmenťs licenses. Id, at 12. Investigator Jones and
Investigator Apraku showed their badges to Mr. Martin. Id, at 13-14. Mr. Martin tried to
"snatch" the billfold that contained Investigator Apraku' s badge and government-issued
identification, but Investigator Apraku told him that he could not take his badge out of his hands.
Id., 13, 47, 74-75. The investigators then requested to see the establishmenťs licenses. kL at 13

5. Mr. Martin took the investigators up the stairs, to the second floor of the establishment.
Id. Mr. Martin went up the stairs first, followed by Investigator Jones, who was followed by
Investigator Apraku. Id, at 77. Upon reaching the second floor, Mr. Martin put his hand on
Investigator Jones's chest, and told him to wait. Id, at 16, 38, 40, 78. Investigator Jones stopped
near the second floor bar and waited for Mr. Martin to obtain the establishmenťs licenses. Id, at

16. Aňer Investigator Jones stopped, Investigator Apraku finished walking up the stairs and
stood next to Investigator Jones near the bar. Id, at 78, 108.

6. Mr. Martin went behind the second floor bar. Id, at 79. He returned with a frame that
contained the establishmenťs licenses from the other si de o f the bar. Id, at 16. Mr. Martin then
slammed the licenses on the bar and demanded to see Investigator Jones's identification again.
Iďat 16, 80.

7. Investigator Jones presented his credentials to Mr. Martin a second time. Id. Mr. Martin
then grabbed Investigator Jones' s credentials. Id, In response, Investigator Jones pulled his
credentials out of Mr. Martin's hands. Id, at 16, 53.

8. Mr. Martin proceeded to accuse Investigator Jones of having fake identification. Id. at

1 7. Mr. Martin then told the investigators that Investigator Apraku had "reál" identification. Id,
at 1 7, 8 1 -82. He then told the investigators that if he would not let them see their identification
documents, he would not allow them to view his licenses. Id, at 17. Mr. Martin then began
cursing and yelling, ordering the investigators to leave the establishment, and calling on security
to eject the investigators. Id. at 17-18, 85.

9. At the top of the stairs, Investigator Apraku felt Mr. Martin pláce his hand on Investigator
Apraku's back. Id, at 85. Investigator Apraku felt Mr. Martin "pushing" him to leave the
establishment. Id, at 85-86, 91 . He then observed Mr. Martin make a circle motion with his
hands to order security to get the investigators out of the establishment. Id. at 86-87, 102.

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1 0. Investigator Jones attempted to leave directly out of the establishmenťs front dooř as
security members began surrounding the two investigators. Id. at 1 8-19, 85, 90. Threc to four
security members then escorted the investigators out of the establishment. Id, at 18, 104.
Investigator Apraku noted that he was concemed for his safety, because security tends to deal
with unruly patrons in the establishment and they were unaware that Investigator Jones and
Investigator Apraku were ABRA investigators when Mr. Martin summoned them. Id. at 103.

1 1 . Upon reaching the fírst floor, Investigator Apraku told Investigator Jones that he had
been pushed. ]d, at 89. In response, Investigator Jones turned around and warned Mr. Martin
that pushing an investigator could be considered an "assault." 1 Id.

12. Mr. Martin continued screaming at the investigators and ordering them out of the
establishment. Id, at 20. As patrons sat around wondering what was occurring, the investigators
left the establishment. ]± at 20, 89, 91 .

13. The investigators then calíed Supervisory Investigator Stewart who arrived at the
establishment approximately twenty minutes after Mr. Martin ejected the investigators. Id. The
investigators entered the establishment with Supervisory Investigator Stewart and met Mr.
Martin on the second floor. Id. at 21. Supervisory Investigator Stewart had the investigators
show Mr. Martin their identifications. Id. Mr. Martin continued to scream and accuse
Investigator Jones of possessing fake identification while saying that Investigator Apraku had
proper identification. Id,

14. Investigator Jones described Mr. Martin's behavior during their encounter as "strange"
and incoherent, while Investigator Apraku described Mr. Martin's behavior as "bizarre." Id, at
1 8, 38, 82-83. Investigator Jones also described Mr. Martin' s eyes as appearing "funny" during
their encounter. Id, at 38.

15. The Board has the authority to fine, suspend, or revoke the license of a licensee who
violates any provision of Title 25 of the District of Columbia Official Code pursuant to District
of Columbia Official Code § 25-823(1). D.C. Code § 25-830 (West Supp. 2013); 23 DCMR §
800, et seq. (West Supp. 2013). Furthermore, after holding a Show Cause Hearing, the Board is
entitled to impose conditions if we determine "that the inclusion of the conditions would be in
the best interests of the locality, section, or portion of the District in which the establishment is
licensed." D.C. Code § 25-447 (West Supp. 2013).

' It could also potentially be considered a violation of the law protecting public officials, which states,

A person who corruptly or, by threat or force, or by any threatening letter oř communieation, intimidates,
impedes, interferes with, or retaliates against, or attempts to intimidate, impede, interfere with, or retaliate
against any official or employee, while the official oř employee is engaged in the performance of his or her
duties or on account of the performance of those duties, shall be fined not more than the amount set forth in
§ 22-3571.01 or imprisoned not more than 5 years, or both.

CONCLUSIONS OF LAW

D.C. Code § 22-85 l(b) (West Supp. 2013).

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I. Credibility

1 6. Mr. Martin, the owner of Sticky Rice, read a statement and testified as to his recollections
of the events that occurred during the investigation. Id. at 1 17, 1 19. Based on the testimony
presented by the investigators and Mr. Martin's bizarre behavior, we do not find his account
credible. 2 Specifically, we find Mr. Martin's statement that Investigator Jones possessed
Supervisory Investigator Stewarťs identification credentials dubious and unconvincing. Id at
124, 159. We also find it highly unlikely that two investigators failed to have proper
identification with thcm during a routine investigation. Id at 120. Further, if Mr. Martin
believed that the two investigators possessed falše identification, we fail to understand why Mr.
Martin did not try to confirm their identities before leading the investigators to the second floor
of the establishment. Id at 121, 172, 174. Finally, Mr. Martin' s actions and supposed fears
appear unreasonable when the investigators did nothing more than ask to see his license and, as
Mr. Martin claímed, he intentionally placed security near the bottom of the stairs in order to
ensure that his security could observe the investigation. Id at 121-122, 138, 155, 157, 162, 176-
78, 193-94.

17. For these reasons, we are unconvinced by the testimony provided by Mr. Martin. We
also credit both investigatoťs testimony that they possessed the appropriate credentials and
presented them to Mr. Martin during the investigation. Id at 24-25, 27, 74. Finally, we
conclude that due to their encounter with Mr. Martin, Investigator Jones and Investigator Apraku
did not have an opportunity to examine the establishment' s license. Id at 24, 29, 59-60, 80-81,
96.

II. § 25-823(5)

1 8. Under §25-823(5), it is a violation if "The licensee fails or refuses to allow an ABRA
investigator ... to enter or inspect without delay the licensed premises or examine the books and
records of the business, or otherwise interferes with an investigation . . . ." D.C. Code § 25-
823(5) (West Supp. 2013).

1 9. There is no rational explanation for Mr. Martin' s bizarre behavior during the
investigation. Investigator Jones and Investigator Apraku were engaged in a lawful investigation
when they entered the Respondent' s establishment. Supra , at f 2. The investigators presented
proper identification and gave Mr. Martin no reason to fear their presence. Supra , at ]flf 3, 16.
Yet, he chose to end the investigation summarily by yelling and cursing at the investigators and
calling on security eject the investigators from the establishment. Supra , at *[fl[ 9-10. While we
have no idea what was going on in Mr. Marthťs head at the time this incident occurred, we are
quite convinced that Mr. Martin' s actions and behavior risked causing a dangerous confrontation
between security and ABRA's investigators. Supra , at % 10, Moreover, Mr. Martin's bizarre
behavior and hostility prevented the investigators from checking the establishmenťs license;

2 See Resper v. U.S., 793 A.2d 450, 457 (D.C. 2002) ("It is ctearly witbin the province of the trial court to make the
credibility determinations needed to resolve conflicts in witnesses' testimony.")

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therefore, we find that Mr. Martin unjustifiably interfered with an ABRA investigation under
§25-823(5). 3 Su E ra J atH16.

ORDER

Therefore, based on the foregoing findings of fact and conclusions of law, the Board, on
this 16th day of October 201 3, finds that Bee Hive, LLC, t/a Stieky Rice, violated D.C. Official
Code § 25-823(5). Accordingly, the Board imposes the following penalty on the licensee:

(1) For the violation described in Charge I, the Respondent shall pay a fine of $4,000. The
Respondent shall also receive a fifteen (15) day suspension of its license for this offense.
The Respondent shall also receive ten (10) stayed suspension days, which shall go into
effect if the Respondent is found to have committed an additional violation of Title 25 or
Title 23 within one year from the date of this Order.

IT IS FURTHER ORDERED that the Respondent must pay the fines imposed by the
Board within thirty (30) days from the date of this Order, or its license shall be irnmediately
suspended until all fines are paid.

IT IS FURTHER ORDERED that the Respondenťs suspension shall begin on
November 13, 2013, and end at 1 1:59 p.m. on November 27, 2013,

The ABRA shall deliver copies of this Order to the Government and the Respondent,

3 Mr. Martin claims that he complied with the investigation by permitting the investigators to examine his license.
Tr., 7/24/13 at 123. As we note in our Order, this is factually incorrect. More importantly, a licensee has no right to
dictate the length and scope of an investigation or inspection. As a result, Mr. Martin' s argument that he gave the
investigators enough time or opportunity to view the license is completely unpersuasive.

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District of Columbia

I concur with the decision reached by the majority of the Board as to the violation of D.C.
Official Code § 25-823(5). Nevertheless, I dissent from the penalty selected by the majority. In
my view, it is unusually severe; it is not commensurate with the "crime," nor does it serve the
public interest.

While the facts clearly show that the Licensee interfered with the investigation in violation of
Section 25-823, those facts also indicate that the Licensee 's actions were not based on any mal
intent. To the contrary, the Investigators describe the Licensee' s behavior as "strange" and
"bizarre." Certainly it was not rational or in the Licensee's best interest to scream profanities at
the Investigators and withhold licenses fřom them during a routine compliance check where no
violations would have been found.

As we statě in Conclusions of Law at 15, "after holding a Show Cause Hearing, the Board is
entitled to impose conditions if we determine "that the inclusion of the conditions would be in
the best interests of the locality, section, or portion of the District in which the establishment is
licensed." D.C. Code Section 25-447 (West Supp. 2013).

The lengthy suspension in this case serveš no public interest to the locality, section or portion of
the District because it does not address any problém related to this violation. No one in the
establishment, including the Investigators, suffered any physical harm. The problém in this case
was the Licensee' s aberrant behavior. As of the date of the hearing, there had been no follow-up
to determine if this behavior was a one-night occurrence or whether such behavior is continuing.
In my view, it would be in the public interest to monitor the establishment rather than impose
suspension days.

Ruthanne Miller, Chairperson

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Pursuant to 23 DCMR § 1719. 1 (Apríl 2004), any party adversely affected may filé a Motion for
Reconsideration of this decision within ten (10) days of service of this Order with the Alcoholic
Beverage Regulation Administration, Reeves Center, 2000 14th Street, N.W., 400S, Washington,
D.C. 20009.

Also, pursuant to section 1 1 of the District of Columbia Administrativě Proceduře Act, Pub. L.
90-614, 82 Stat. 1209, District of Columbia Offícial Code § 2-510 (2001), and Rule 15 of the
District of Columbia Court of Appeals, any party adversely affected has the right to appeal this
Order by filing a petition for review, within thirty (30) days of the date of service of this Order,
with the District of Columbia Court of Appeals, 500 Indiána Avenue, N.W., Washington, D.C.
20001. However, the timely filing of a Motion for Reconsideration pursuant to 23 DCMR §
1719.1 (Apríl 2004) stays the time for filing a petition for review in the District of Columbia
Court of Appeals until the Board rules on the motion. See D.C. App. Rule 15(b).

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